Estate Planning for Parents of Minor Children: What You Need to Consider When Writing a Will

Disclaimer: This article on writing a will is intended for the purpose of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

When most of us think of estate planning, we imagine an older adult making plans. However, we have seen time and time again how important it is to have estate planning documents in place much sooner, regardless of your family status, age, etc. 

Are you a new parent and are more compelled to think about what happens after you’re gone? Or did you have a will in place, but it was prepared before you became a parent? Has your family situation changed, and you’re now a blended family? If so, we recommend contacting us to create your wills and powers of attorney. 

When writing a will for parents of minor children, there are more factors to consider, which we will outline in this article. For example: 

• What happens if I pass away but they have a surviving parent? 
• What happens if we both die? 
• Are my guardianship choices going to be upheld? 
• What if my child has received an inheritance from someone else? 
• Should I let my child receive an inheritance at age 18? 
• What if I’m part of a blended family? 

What happens to minor children if one parent dies? 

As far as custody is concerned, the surviving parent will typically retain their inherent rights to custody. This means they will be fully responsible for your children’s upbringing and well-being. 

That inherent right is for custody, not guardianship over their property. We will discuss below in more detail whether or not the surviving parent would be the guardian of your children’s property. 

Writing a will and choosing a guardian for minor children

What if both you and your spouse pass away? Your will should outline your wishes for who should care for your children if both of their parents pass away. There are a few considerations to consider, in line with section 61 of the Children’s Law Reform Act: 

The Children’s Law Reform Act Requirements for Appointing a Guardian

If you are the only person with decision-making authority for your child, then you can make that appointment in your will. 

However, if you share decision-making authority (for example, if you and your current or ex-spouse share custody of your children), you must agree on any appointments for custody or guardianship of property. For example, if you appoint your parents and your ex-spouse specifies their parents, neither selection is valid. 

You also must appoint someone who consents to the appointment. Have that conversation and make sure the person you select is prepared to take on this responsibility. 

Temporary guardianship 

When you make an appointment for someone to be your children’s guardian, that appointment is only valid for 90 days. The guardians must then apply to the courts to confirm their permanent position. The courts will place a heavy weight on your recommendations, and anyone contesting would have to provide serious evidence that it is not in the best interests of your children. 

When designating someone as the guardian for your children, you must understand that this appointment is initially valid for 90 days. The appointed guardians must then apply to the courts to permanently confirm their role. 

Your recommendations hold significant weight in the court’s decision-making process, making it crucial to consider your choice carefully. However, if someone contests the appointment, that person would need to present compelling evidence showing that it is in the best interests of your children that the court consider an alternative arrangement. 

Rest assured that the legal system prioritizes the well-being and welfare of your children, ensuring that their best interests remain at the forefront during this critical decision-making process.

What happens if my minor child receives an inheritance from someone else?

There are two types of guardianship: custody (or decision-making) and guardianship for property. Let’s consider the second one. 

As a parent, you do not have an inherent right to handle your children’s property. For example, imagine a grandparent bequeaths funds to your child. You want to open a bank account and access it on your child’s behalf. The bank may first request a court order appointing you as guardian of your child’s property. 

The courts will generally appoint you as the guardian of your child’s property unless there are compelling reasons not to do so. While that may seem overly restrictive, it can be a protection. Unfortunately, there have been instances where parents have mismanaged or squandered their children’s property. 

If you pass away, you can appoint someone as guardian of your children’s property. For example, your ex-spouse may retain custody of your children, but someone else would have guardianship over their property under your estate. That person must update the Court and the Children’s lawyer regularly. 

Timing your child’s inheritance

Any inheritance you leave to your child will become theirs to spend at 18 unless you specify otherwise. For many parents, that can be a concern. After all, many 18-year-olds are not emotionally and financially responsible enough to make good decisions at that age. 

That is where you can create a graduated trust. 

What is a graduated trust? 

A graduated trust is a powerful tool that allows you to control how your child receives their inheritance. Instead of giving them the entire sum at age 18, you can stagger the distributions to ensure they are more financially responsible and mature. For instance, you may distribute a portion of the funds at age 20, another at age 25, and the final amount at age 30. 

You can also advise where the trustee can provide funds earlier, for example, to pay for post-secondary education. 

Estate planning and stepchildren 

As noted, the traditional two-parent nuclear family is no longer the norm. What if you have stepchildren that you want to include in your estate planning? How can you ensure that your children are provided for? 

For parents with children from previous relationships, estate planning requires thoughtful discussions and strategic planning. Designating guardians and managing inheritances must be approached sensitively to guarantee that all children are provided for and minimize potential conflicts. It’s a delicate balance of safeguarding the financial future of your loved ones while maintaining harmony among all parties concerned.

Beeksma Law: Your Partners in Estate Planning

At Beeksma Law, we understand the significance of comprehensive estate planning for parents of minor children. Our team is here to guide and support you through this critical process, ensuring your children’s best interests remain at the forefront. Let us be your trusted partners in crafting a secure and harmonious future for your loved ones. Together, we can navigate the complexities of estate law and leave a lasting legacy for generations.